SARASOTA INC v. Phillips, Lytle, Hitchcock, Blaine & Huber, Esqs., et al., Defendants. (2006)

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered January 6, 2005, which, inter alia, denied defendants-appellants' motion to dismiss the causes of action for breach of contract and violation of Judiciary Law § 487, unanimously affirmed, without costs.

There is at least an issue of fact as to whether the contract claim was viable as a promise to achieve a particular result separate from the breach of general professional standards in defendants' field and thus not duplicative of the legal malpractice cause of action (see Matter of R.M. Kliment & Frances Halsband, Architects v. McKinsey & Co., Inc., 3 N.Y.3d 538, 542-543, 788 N.Y.S.2d 648, 821 N.E.2d 952 [2004];  Senise v. Mackasek, 227 A.D.2d 184, 642 N.Y.S.2d 241 [1996] ).   The Judiciary Law § 487 claim was not conclusory, as it was supported by the previously sustained allegations of fraud, and was based on conduct in a proceeding to which plaintiff was a party, rather than conduct taking place before or after the proceeding (cf. Stanski v. Ezersky, 228 A.D.2d 311, 313, 644 N.Y.S.2d 220 [1996], lv. denied 89 N.Y.2d 805, 653 N.Y.S.2d 918, 676 N.E.2d 500 [1996];  Bankers Trust Co. v. Cerrato, Sweeney, Cohn, Stahl & Vaccaro, 187 A.D.2d 384, 386, 590 N.Y.S.2d 201 [1992] ).   Whether the alleged deceit meets the standard required by Judiciary Law § 487 subjecting defendants to treble damages (see Schindler v. Issler & Schrage, 262 A.D.2d 226, 692 N.Y.S.2d 361 [1999], lv. dismissed 94 N.Y.2d 791, 700 N.Y.S.2d 422, 722 N.E.2d 502 [1999] ) presented an issue of fact.

We have considered the parties' other contentions for affirmative relief and find them unavailing.